Opinion
02 C 5071
April 9, 2003
Defendant's Motion to Dismiss or in the Alternative for Summary Judgment
Before the Court is Defendant's Motion to Dismiss or in the Alternative Summary Judgment. Plaintiffs', Paul Evans and Queenesther Evans (hereinafter "Plaintiffs"), complaint asserts that they should be reimbursed by Defendant, the United States of America, for payments made to the Internal Revenue Service. Defendant asserts that Plaintiffs are not entitled to a refund, but even if they were that their claims are time barred by 26 U.S.C. § 6511 (a). Defendant has filed a motion to dismiss or in the alternative for summary judgment pursuant to § 651 l(a). In both Defendant's motion and Plaintiffs' Response Brief the parties have attached additional exhibits that are not part of the original complaint. Therefore, the court deems, pursuant to Fed.R.Civ.P. 12(b), Defendant's motion to be a motion for summary judgment. For the following reasons Defendant's motion for summary judgment is granted.
Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also Shank v.William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (stating that a party opposing summary judgment must present "what evidence it has that would convince a trier of fact to accept its version of events.") The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Fed.R.Civ.P. 56(c);see also Perdomo v. Browner. 67 F.3d 140, 144 (7th Cir. 1995) A defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence. See e.g. Navarro v. Fuji Heavy Industries. Ltd.. 117 F.3d 1027, 1030 (7th Cir. 1997). If the plaintiff fails to come up with the required proof, the defendant is entitled to summary judgment.See id.
In this instance Plaintiffs have failed to produce any evidence that refutes the two year statutory limitation for filing actions for refunds from the Internal Revenue Service. Section 6511(a) states:
Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the refund was filed or 2 years from the time the tax was paid.
On or about April 14, 1987, Paul Evans was assessed a Trust Fund Recovery Penalty in the amount of $46,783.89, pursuant to 26 U.S.C. § 6672. Payments were made on the Trust Fund Recovery Penalty from March 28, 1989 until January 9, 1996. See Def.'s Summ. J. Mot. Ex. A pg. 2-5. Plaintiffs filed a Claim for Refund on November 3, 1999, which the I.R.S. summarily denied. Plaintiff's clearly have failed to file a Claim for Refund with in the statutory period.
Plaintiffs assert that they did file their Claim for Refund within the statutory time period. Plaintiffs contend that the statutory time period did not start until May 14, 1999, the time that the Evangelical Christian School made its final payment for penalties assessed, pursuant to a bankruptcy agreement. Plaintiffs further contend that the payments they made were to be placed in escrow to ensure that the Evangelical Christian School complied with the terms of their bankruptcy agreement and that once the School complied with the settlement agreement that Plaintiffs' funds would be returned.
Plaintiff has failed to produce any evidence that their payments were supposed to be placed in an escrow account and later returned. In fact, Exhibit 2 of Plaintiffs' response brief, the bankruptcy agreement, makes no reference to Plaintiffs or their individual assessments. Therefore, the Court finds that Plaintiffs have failed to file for a refund within the statutory time period and is therefore time barred. Defendant's motion for Summary Judgment in granted.